The Virginia school board that banned a transgender teen from using the boys’ restroom, although he identifies as male, plans to ask the full 4th U.S. Circuit Court of Appeals to review a ruling by three circuit judges in the teen’s favor.
The Gloucester County school board announced its decision after a closed-door session Thursday to discuss the 2-1 decision that came Tuesday in the Gavin Grimm case.
Grimm’s case could affect North Carolina’s House Bill 2, which requires transgender people in public facilities in North Carolina to use the restroom that corresponds to the gender on their birth certificate.
The appeals court’s ruling in the Grimm case establishes legal precedent in every state in the 4th Circuit, which includes North Carolina.
Six people have challenged North Carolina’s law in a federal court case that makes some of the same legal arguments made in the Grimm case.
Grimm argued that Gloucester County’s bathroom policy was a violation of Title IX, the federal law that prohibits sexual discrimination and harassment in the schools.
In its ruling on Tuesday, the three-judge appellate panel sent the Grimm case back to a lower court, saying the judge there had not considered a request to block the bathroom policy while the lawsuit proceeded within the realms of Title IX.
Within that majority opinion was a definition of how the judges interpret Title IX. They agreed with an opinion letter from the Department of Education that said forcing transgender students to use facilities corresponding to their birth certificate, and not their gender identity, was discriminatory.
That would nullify the portion of North Carolina’s HB2 that addresses public facilities requirements.
Carl Tobias, a law professor at the University of Richmond, said the 4th Circuit could reject a request from Gloucester County for all 15 members of the court to review the three-judge panel’s ruling.
Because the lower court judge has not yet decided the crux of the Grimm case given their instructions in the Tuesday ruling, the appellate court could decide to wait until that happens before any further review.
Tobias said it is rare for the 4th Circuit to grant such reviews. Typically, only five cases are reheard each year, Tobias said.
Tobias said the Gloucester County request could be “a telling test of the views of the current 4th Circuit, which used to be the most conservative appeals court in the U.S.”